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tv   Supreme Court Landmark Case Lochner v. New York  CSPAN  August 7, 2017 4:25pm-5:59pm EDT

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>> all persons having business before the honorable supreme court of the united states are admonished to draw and give their attention. >> landmark cases. c-span's special history series produced in cooperation with the national constitution center. exploring the human stories and constitutional dram as behind 12 historic supreme court decisions. >> number 759, petitioner versus arizona. >> we hear arguments from number 18 and roe against wade. >> quite often the most famous decisions are ones that the court took that were quite unpopular. >> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of
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310 million people who would help stick together because they believe in a rule of law. >> welcome to landmark cases. our seary ises looking at 12 of the most important cases in the supreme court's history. we learn more about the people and the issues behind them. tonight, we're going to be talking about lockner versus new york 1905 and it is one of the most controversial cases of the supreme court and the story of of a baker in new york whose case gave rise to an era that gave rise over 34 years approximately let me introduce you to the guest this will tell us more about this important keynes and why it's been important for the supreme court in our country's history. randy barnett is at georgetown university law school and the auth are on of a book called "restoring the lost constitution," the presumption of liberty. randy barnett. thank you for being with us. >> paul kens wrote the bock on
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lochner. his home base is texas state university where he teaches political science. paul, thanks. i'm telling people they should be interested in this, why don't you explain why, both of you? why is this case important? the case has become a symbol, a political symbol and it was made into a political symbol by teddy roosevelt when he ran in 1912 and it was a symbol about how roosevelt claimed that the court had overreached and overstepped its ground to block progressive legislation from being enacted at the state level and ever since then it was a political flash point in a presidential campaign. >> political flash point for come side. well, roosevelt claimed that this was a product of a laissez-faire economics which is what he got from the dissenting opinion of justice holmes in the case. roosevelt put holmes on the court and he was extolling holmes as the model of what a
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justice should be when he put him on the court when he was president and he was running in 1812 and he elevates holmes and this case which was called the bake shop case. to. >> political salients that it didn't have until that campaign and this was the battle, and increasing state regulation and federal regulation of all kinds of economic activities and those who favored a more free market economic system who believed that the constitution protected the liberties that the court does protect in lochner. >> let's call it one of the most controversial decisions in the history of the supreme court. what made it so? >> i think it was controversial for two reasons and one of those reasons was that just as randy had said that it had an economic element to it. it was a conflict between two different visions of what the country should be.
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the one that focused on labor and it focused on democracy, and it focused on individual liberty and individualism and liberty. so that's one reason. he ails said the second reason that went right alongside is the dispute about who should make those decisions about those debates and lochner versus new york, the supreme court said it should make the decisions about the debates. >> specifically, what does the court decide, what framework were they asked to look at in this case? >> they were asked to look at the constitutionality of one provision of a larger statute that was called the bake shop act. it was a regulation of how bakeries should be operated that basically limited the number of hours that an employee could work in the bake shop to ten hours a day and 60 hours a week and that was the maximum they would be a tloud work under the statute and so the court was
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asked to decide whether this was a valid exercise of the state's police power or whether it was a violation of the liberty protected by the due process clause which says no person shall be denied life, liberty without due process of law and they decided it did violate the due process law. >> we'll go back and learn more about the conditions that bakers faced in this area that gave the passing to the bake shop law. this is the case that has one foot firmly planted in the gilded age and the other in the progressive era. we'll watch this video and have you talk about the conditions and what was happening in the united states around this time. let's watch. >> lochner was about new york, at that time bakery workers worked in underground cellar bakeries much like this one where they had to toil for many, many hours many week producing
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bread to feed a vast and growing city. at that time there were 2500 or more bakeries in new york city. an incredible number and the bakery workers would have to come down into these cellars and essentially spend their lives here. the ceilings of the bakery are relatively tall, but at the time most bakeries were maybe six, seven, eight-feet tall. they were hot. they were humid. there were pipes which dripped sewage and other things on to the floor. this floor here which you can see is tile, but actually probably made out of dirt and wo wood. so it would always be soggy and dirty. the utensils were never cleaned because they had no hot water at the sink here and there were other bread making equipment and nothing would be clean or
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sanitized and here we come to the oven and this is an oven from about the turn of the 20th century. and it would have been a coal-fired oven and there would have been a big pile of coal right over here. black coal which was always kicking up a lot of dust so everything in the room would have been grimy with coal dust and then the oven here would belch lots of hot fumes laden with coal dust and the bakery workers were breathing this all day and the bread would have been stored. the baked bread would have been stored somewhere around here and the baked bread also would have been covered with a thin layer of coal dust because that was what the atmosphere of the cell cellar bakery was and then you add to that perhaps that there were vermin running around and cats to catch thor have me verm they would find warm loafs and
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they'd sit on them and sleep on them. the conditions at these bakeries were want the most sanitary by any means either for the product or for the workers themselves. >> so, paul, what would you want people to know about what was happening in the united states at the turn of the century? >> well, the turn of the century, as i said moving from the gilded age to the progressivier a the united states had already entered into a kind of a mechanized industry kind of business rather moving from a farming business and one that was local from the economy that was local in farming to one that was industry or national or international. certain people benefitted and some didn't. one of the things that happened was the big cities sprung up like new york and chicago, were examples in which a new kind of industries flourished and
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clearly in these tenament areas and as it turned out the baking industry. this clip is a great clip, actually, but it's one those things that a video clip is worth 1,000 words because where he's standing looks better than what i would imagine a bake shop would have looked in the era of 1905. they weren't just dirt floors and sewer pipes overhead and there were suers in the ground and sometimes were wood, rats ran freely and so did roaches. bakers worked exceedingly long hours and exceedingly difficult work. it wasn't as difficult as a lot of work during that time, it's true, but the title of my first chapter, by the way is not my grandma used to bake. thaef they were handling 100 to 200
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pounds of sacks of flour and it's hard work and it was dirty and filthy and difficult work for long hours. >> but it wasn't just that it was difficult conditions for the bakers. there was also the public health was endangered by the conditions that these people were working in because the bread wasn't very sanitary. what was also happening in the country that people were beginning to look with public health and public safety. >> well, i think this is a really good time after that clip to talk about the bake shop act and what the legislature of new york did to address the conditions that you so -- there were so well described in the video. so the bake shop act had a number of sections, sections 110 through 115, and i'm just going to read the headings of the sections and not all of the details and section 111, drainage and ponding. 12, requirements as to utensils and it doesn't have to be cement or tile.
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washrooms and closets, sleeping places. number 14, inspection of bakeries to make sure the others were being taken care of and notice of requiring atvations and say if they would make changes. these are very, very detailed regulations. do you know where i got this from? this is attached to the majority opinion in the locnner were unchallenged as unconstitutional. the court says there is absolutely nothing unconstitutional about any of these health and safety laws. so the very conditions that are being complained of in that video were being addressed by health and safety law and the constitutionality of the health and safety law was not called into question each by tven by t lochner quote. >> what was called into question?
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>> one that was added by the bake shop unions which was the maximum hours law i mentioned at the top of the show. it was added to the section and it didn't come about through the same legislative process to say that in addition to all of the health and safety regulations, workers can't work more than ten hours a day and they can't work more than 60 hours a week. >> let me interject something. that provision wasn't added later, it was checked before. it was checked afterwards. what happened was the bake shop act was passed in 124-0 in the house and 34-0 in the senate and it went back to the legislature for reasons that the governor's personal secretary found that they used the word person in the act rather than employee and he was afraid that the act would be found unconstitutional because it applied to bake shop owners as well as bake shop employees. so they voted on it a second time specifically on that
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provision, and again it was a little bit fewer people in the assembly, like, 120 to, like, 30 in the house. something of that order. so we had 130, 135 legislatures and one governor that signed off on that specific provision. >> that's true. that's true. paul brings up an important point. the provision regulated the maximum hours and it did not regulate the maximum hours of the owners that worked in the same conditions. they were allowed to work longer than ten hours a day and more than 60 hours a week which is another reason yet court became suspicious of this one provision after saying all of the rest of the health and safety rules were perfectly okay. >> it's time to introduce a character who will be part of our drama later on in the story, as well as this early stage. his name is henry weissmann. who was henry weissmann and what did he have to do with the passage of new york's bake shop
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law? >> henry weissmann is actually a very interesting character and i don't know how this has happened to me, normally i choose someone that's hard to follow. he's not really famous, but he's famous enough that you can find little bits and pieces about him. what i did learn is he was a german national and he was a baker in germany and he landed in california first in the united states in 1886 where he joined the anti-coolly league which was an anti-chinese organization and a sometimes violent organization. he ended up being put in jail for six months as possession of the explosives. soon after he was released he came to new york where he was hired as the editor of the baker's journal which was the international bakers and confectioners unions journal.
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>> question about the unions. were they starting to organize? >> unions throughout the united states at this time, and remember, we're talking 1895 now and it's not 2005 which makes a lot of difference, by the way. >> unions in the united states were not well organized and the first union started in the two decades after the civil war. there were unions before then, but they were usually specific like the engineer locomotives for railroads and very specific unions and the national unions didn't start to take shape system later in the century, and what's really important is the first thing that they organized around was standardizing the work day. workers worked from day to night. they didn't choose. remember, one thing that people don't really understand about this case is workers were paid by the day or they were paid by the week. usually by the week and usually at the time by 1895 about $12 a week. the amount of time they worked
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during the day -- that day was up for the employer. there was no bargaining about it. the employer set those hours and those hours were pretty darn long. in fact, in 1881 the bakers were on strike in new york and what they were striking for was a 12-hour day. think about that. their improve ment was going to be a 12-hour day and they worked six to seven days a week. we'll take you next to the new york state assembly to tell you more about how the bake shop act was passed. we'd like it tol you part of the program. it helps us understand what aspects of the history of this you'd like to learn more about. so if you're watching us if 272-748-8901. dial those carefully and send us a tweet and if you do, @c-span
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any use the #landmarkcases. finally, there is a conversation going on about the lochner case on our facebook page and you are welcome to be a part of that if you'd like, as well. so where all that, let's take you to the new york state s semiblee for the history lesson and how the bake shop act was passed. >> when the bake shop reform bill was introduced in the new york assembly on february 1895 bakers from new york city's east side were on strike to demand shorter hours and better working conditions. we're in the assembly chamber of the new york state capitol building. this is where the bake shop act of 1895 would have been debated and passed. it was a time when unions were just beginning to gain influence. however, most of them preferred to use striking and organizing as tactics instead of working directly with the legislature because they believed it would
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take less time and it would be less expensive. >> three major factors influence the adoption of the bake shop act and for one, the volatile politics of new york state, the government had recently transitioned from majority democrat and the democratic governor to a republican governor, and both houses of legislature had republican majorities. the republicans were at the time interested in increasing government involvement and were very, very reform minded and the democrats were divided. there were pro-reform democrats, but there were also many still that represented the hall interests. the second factor was an expose in the new york press about the terrible conditions in bake shops, conditions that were not
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sanitary and definitely very harmful for the workers themselves. after that expose was published in september 1894, the legislature was sieged with petitions and pamphlets and letters, many from prominent citizens and many from members of the clergy decrying the terrible conditions in baking shops and urging the legislature to do something about them. on february 12, 1895, a freshman republican assemblyman from brooklyn introduced the legislation. it was debated and passed with very wide margin, in fact, it was 90-0. not all members being present, and it went on to the senate and was passed by an equally large margin. 20-0, and governor levi p. morton signed the bill into law on may 2, 1895, just two weeks before the end of the assembly session.
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>> so, paul, this is an interesting story about the impact of a newspaper article. muck raking press to influence public opinion and therefore push the legislature into passing the legislation. would you talk more about that? >> never quite answered your question about henry weissmann and that's important, too, it kind of plays in. henry weissmann in 1894 when he came to the bakers union, he actually took over the bakers union. he didn't do it formally and he warrant elected leader and he basic low took over the backers union and he was a charismatic person, fluent in both german and english, ambitious and smart. 1894 which was the same year, by the way, that there was a ten ament house committee of the tenament slums and as it turns out i don't think henry weissmann had much to do about starting the process of this bill passing the senate and it was an offshoot of the committee
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and it was call the gilder committee and one of those committee members was edward marshal and he's the man that was mentioned in the film clip and edward marshall took up the idea of the bake shops being one of those kinds of slum businesses that they were trying to solve the problems of, and when he put that article in the press, that he was the editor of the press and when he put that article in the press that caused the attention to be drawn, but it was his allies in the giltder committee. >> did the legislation work? did it have an impact on the conditions that the bakeries were working in? >> i don't know. do you know whether their safety -- >> i just looked it up been with respect to the bakers themselves, it did and didn't because by 1913 most bakeries in
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new york where most bakers were working ten hours a week roughly and that was mostly because of collective bargaining. not so many, and it was the union bakers that tended to work that were ten hours a week and respect to health it was a different question. all we have or all i could find wrtd records of the factory inspectors and they were just a report that the number of inspections they make and the number of violations they find. on the other hand, by 1913 the factory inspectors are calling for complete prohibition of new tenament house bakeries, so i'm thinking maybe they didn't work. >> i think i want to follow up on one thing because i was going to mention the union. the most union shops were ten hours. why would the unions want to invest scarce resources in passing a law that benefit
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people that are not members of the union? it's usually because they're trying to address competition to union-organized shops, whatever they may be. it's the same reason why, for example, they supported maximum hours and minimum wage lost for women because unions in those days were all white and they were generally all-male. so we have to think that the units are being unusually altruistic if they're going to be retrekking non-union bake shops, the ethnic, german and you'rish bake shops weren't easy to oegize. how you would you get a restrictive, if they're small enough to man the ovens, you have to man the ovens around the clock. remember the old dunkin' donuts come earn? get up because it's time to bake
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the doughnuts? these small mom and pop bake shops couldn't afford shift workers. if you had shift workers you could work eight-hour shifts and it was a way for union-organized bakeries to suppress competition from these ethnic mom and pop bake shops. >> on twitter, one of our viewers asks how much do loaves of bread cost relatively and how much of that is profit and also wants to know were the bakers also the owners? >> that depends. i don't know how much bread cost at the time and i don't know if most was profit. with respect to the bakers being owners, it was two kinds of industries and it also the cracker industry, it tended to be unionized and it became monopolized and it became
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nabisco. >> the national biscuit company became nabisco. >> even in 1910, i can't remember the exact figure, but something like figure, but something like that 98% of bakeries were not mechanized. it depends on where the bakery was. if it was a small bakery in a small town, probably the owners were some workers. if they were bakeries in the tenement houses they were probably just workers. >> in a moment we'll name joseph lochner who was the owner of the bake shop in uttica, new york. we have a number of callers, one from patrick in new york. hi, patrick, you're on. >> caller: hi, good evening, i would like to ask mr. barnett to comment on two points. as you know, wendell holmes jr. wrote the dissenting opinion in lochner.
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also as i am sure you are aware, justice holmes is one of the most cited justices in history, principally i think because of his opinion. i would like to contrast justice holmes with the book, structure of liberty, where he emphasized the structure between libertarianism and classic liberalism. would you say that, as you indicate in your book, the private adjudication and the enforcement of law is the only legal system that can provide adequate solutions to problems of interest and power? and do you believe justice holmes would sign on to that theory today? >> thank you, that sounds like it could be a masters thesis, could you find a short answer to that? >> that is based on the accurate reading of my book called the structure of liberty, justice and the rule of law. this is really beyond the scope.
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but this caller has read this book and has successfully applied the book to this particular question. right now what we're really concerned about is what the u.s. constitution provides, not what some all -- alternative legal system would provide and whether the constitution in the 14th amendment in particular would be either consistent with the health and safety regulations or inconsistent and that's really what this program is all about. >> andre is in baltimore and you're on the air. >> caller: good evening, i would like to thank c-span for putting this show on, my question for your guests is the disciplined court ruling in west coast hotel versus parish overruled the court's ruling in lochner. >> well, it effectively overruled it because it rejected the whole idea of liberty contract. which we have not talked about.
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it would also kind of follow what holmes said about the constitution being for people of different minds. in other words, it rejected this idea in holmes' view that the case actually placed laissez-faire capitalism and social darwinism in the constitution. >> ed, what's your question? >> caller: i was wondering if the law had an anti-immigrant element to it. it seems as if the uncontested elements of the law would drive undercapitalized bakeries out of business. and taking away a business opportunity for immigrants that they could use what skills they had? >> you're nodding your head. was there an anti-immigrant element? >> that was not the reason i was nodding my head, but i was nodding my head because that was a response to one of the earlier statements. the reason is, the challenge on unconstitutionality. had the businesses driven out the small businesses, i think it was a good thought it would have had an anti-immigrant element to
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it. i never looked into it so i wouldn't really know. >> there is a book called rehabilitating lochner. i'm a big fan of paul's book, there is another book. david talks about the anti-immigrant drive. particularly germans were not trusted, there was a lot of anti-german sentiment, irish and jewish, because the jews and germans were doing most of the baking in new york. however, having said that in agreeing with the caller and with paul, the possible anti-bake shop implementation, they were still formally upheld because they were still health and safety laws, consistent with the approach to the due process clause. >> let's meet next one of those german bakers who was affected by this law that was passed by the assembly in new york.
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and that is joseph lochner. we'll hear about his story from his great grandson. let's listen. >> joe lochner's bakery was probably not the target of the bake shop law but certainly was impacted by it. he was born in bavaria, germany, in 1863, eventually coming to new york and opening up a bakery. they made cakes and cookies and breads and things like that. i have a cousin who talked about how their uncle joe, joe lochner who would come to their house every sunday and he would bring all sorts of sweets. they talked about how delicious they were. the bakery was thriving and joe eventually bought up an entire city block in uttica and eventually had the first car. >> and we came across documents in 1986 that was a co-partnership agreement between my great-grandfather, joseph lochner, and mr. schmitter.
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the contract is 98% partnership to lochner and the remaining 2% to schmitter. what it is, i think it's a way to get around the bake shop act. after joe was arrested and took the case to court every baker in america donated a dollar to the legal defense fund. i think it was a test case. and the reason i think that joe would make a sympathetic kind of defendant. you know he was a hard working immigrant from germany. his bakery was on the first floor. not in the basement. like a lot of other bakeries of that time period. it was also very clean. that is what i was always told growing up as well.
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which may not have been typical for bakeries of that time period. >> so randy barnett, you want to start? >> yes, i want to talk about the germans for a little bit. there was a lot of anti-german sentiment. myronv nebraska was a case in which the local statute prohibited the teaching of german in grade schools, that is how anti-german the sentiment was, at least in nebraska, the very same law said the maximum, also said the restriction on the teaching of german also failed under the due process clause in part because it deprived the people who did german instruct and it was their living, meyer v nebraska case is considered good law today. it's not a case that is part of the bad case is and yet it was still decided by the same lochner court or the similar lochner court on the very same
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basis that lock ner lochnerv. new york was decided. and it also involved anti-german sentiment. >> you have to love our viewers, one of them tweeted looked up on line retail prices of food stuffs, a pounds of a loaf of bread, 7 cents. all right, what do you want to tell us about joe lochner, where he found himself at the center of the legal action. was it his idea to pursue it legally, he would have been gotten arrested because of his violation? >> it was only unusual because a factory inspector -- the state factory inspector only had three inspectors. as a matter of fact, they even got henry wiseman into the act because they got him to do some of the inspecting. right after the bill was passed. >> so the entire state of new york, they focused -- >> that might have been another reason this was unusual. you know, i don't know, i wish i
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would have looked into joseph lochner a little bit more when i did the book. one thing i said he was probably surprised to find himself in court with the criminals on the day he was charged with this law. i think he probably was a hard headed man. i don't think this was a set-up case. i think it was -- a test case, as grandson says, but i don't think it was set up. there was another case earlier called in re jacobs, and it was done in the slums, usually in the homes of people living in the tenement houses. >> cigar -- >> that is what it called. done in the slums, usually a whole family was working on it. sometimes there was a hired
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hand. interestingly enough with the jacobs, charged with violating the law, had two rooms, very unusual. the more unusual thing was he represented by the prince of the american bar, was one of the men who defended andrew johnson when he was impeached. it's kind of curious that this cigar maker could end up with one of the top lawyers in the nation representing him. that was not the case in lochner. who had just a regular old lawyer representing him who made serious mistakes as we can talk about later. >> so we're going to go to the next part of the story, he appeals his conviction under the bake shop law. >> and then it was a criminal conviction. i think he was actually incarcerated for it. i'm not sure, i think that is true.
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>> fined $50 the second time. >> but i think he might have not wanted to pay. so that may be why he went to jail. >> what can you tell about the pursuit of it in the new york courts? >> well, after he was convicted he did not actually -- defend himself. he just refused to plea. he said -- his attorney said he refused the plea because the act he was charged with did not constitute a crime. so it was just a vague statement. i think it was because he always intended to take it to the appeals court. that would be the only reason i think he would do that. unless i'm right, that he was hard headed. but then he went to the appellate division of new york, which was actually the first level of appeal in new york. and there, the conviction was upheld by a vote of 3-2, there for the first time his attorney, william mackie raised the issue of liberty of contract. he used the terms, using the law of profession.
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and it went to the next level of the court, at that level which is the new york court of appeals, at that level they won by a vote of 4-3, so a majority of the judges in new york felt like this law failed. lochner lost, and the law held. >> next, we'll visit the court of appeals courtroom to learn more about joe lochner's story. >> welcome to the new york court of appeals courtroom right here in this way. this is the very courtroom in which people against lochner would have been heard. the case was decided in 1904, and the case was on appeal to this court from a ruling of the appellate division. we have the very setup in which
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the attorneys would have appeared. this side would have been the appellant, which was joseph lochner's people sitting here. the respondent being in this case, the attorney general, would be sitting here. the lawyer for joseph lochner would have begun right here. facing the bench and would have begun with words something like may it please the court, i'm the attorney for joseph lochner, asking the court to reverse his conviction, because he was denied the right to enter into a contract to purchase labor and to accept whatever working hours he, my client, had with the employee. so he would have made that argument right here. the judges would have engaged him in questions, following which the attorney general would have presented the state's viewpoint. and the argument would have been whether the police power of the state can in effect trump the
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right of someone to purchase labor and the right of someone to contract freely with labor. and these were the two considerations that were in the balance. >> so that is the support that joe lochner faced and lost his case on appeal. we'll have more on that. but matthew is watching us in vallejo, california. >> caller: hi, i had a question that went back to a question earlier, about how the unions were working for this work hour restriction as a way to kind of suppress the mom and pop smaller bake shops. one of my college professors indicated it was actually the employers that suppressed the mom and pop bake shops because they were working so many more hours and they just could not
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keep up. i don't know if that was correct or not. >> yeah, the unions and employers who they bargained with had the same interest in suppressing competition. so it's really the other half of the same thing i was talking about. and you're right. the more industrialized larger bakeries that couldn't afford shift workers, had the competition, they sort of had a mutual interest in suppressing their competition, the low price competition. >> well, they may have had an interest, but they may have had nothing to do with the law. i read everything i could about the enactment of the law and i find nothing that shows that either unions or large businesses were involved in passing the law. what i found was the law was
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passed because of this moment. henry wiseman was a lucky man. it just so happened he happened up on becoming the head of the baker's union at the same time the guilder community was doing its service. and it was the power of these individuals, i call them mainstream reformers, they favored good government. working on the problems of poverty in the tenement houses, and they had just enough stroke in the political system in new york that they could get a law like this passed. the unions could not have done that. they were split in three groups, they had no power, money or ability to influence the legislature. which, by the way, you mentioned levi morton at the beginning, levi morton was not the important personality here. it was thomas collier platt who ran the state with an iron fist,
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they might -- the mainstream reformers may, because there were enough republicans to stop the democrats in tammany hall in new york city. >> next is the call from steve. >> caller: i love the series -- my question doesn't pertain directly to the supreme court case. but i was wondering about this triangle of the factories in new york city. to what degree did that speed up the development of labor union movement in this country, to what degree, they talk about working conditions. that have to have labor union movement growing in america? >> paul kens, can you help him with that question? >> well, i couldn't answer that question directly because i
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wouldn't know how it sped up the creation of unions but i think it drew more attention to the problems of tenement house business. >> next is will, watching us from lincoln, delaware. >> caller: yes, calling from lincoln, delaware, thank you susan for taking the call. it's a conceptual question that i would like to open to randy barnett. he introduced in his questions how the landmark case impacted on competition, he talked about education, unions and housing. professor barnett, would you please expand on other key economic factors that the lochner versus new york 1905 case impacts, please. >> i'm not sure, i understand what the caller is asking about. can you be more specific, caller? >> caller: yes, about ten
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minutes ago, professor barnett you were talking about how unions wanted to pursue this landmark case because they were able to restrict competition from mom and pop shops, et cetera. then you talked about how education would be limited. i'm thinking that you have a reputation as probably one of the foremost libertarian theorist of constitutional law. what other precedents have followed from this key case? >> okay, the education piece that i was talking about was how a local law restricted the teaching of german, and how the lochner court instruct that law ated the due process clause. once the due process clause jurisprudence that the lochner case developed to distinguish general health and safety laws, to contextual laws, which really had no basis in health and
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safety. once that particular line of cases was eventually reversed in west coast hotel and others that meant that all of these laws could be passed and there would be no vetoing by the supreme court as to whether or not there was a genuine health and safety rationale. it would simply be presumed and you could not contest it. there were two dissenting cases, not one, there was the famous case by justice holmes, but the other one by justice harlan, and what that dissent said, the benefit of the doubt ought to be to the legislators in passing the health and safety law. it was still permissible to rebut the reasonableness of the regulation, in the case there actually was a pretty good record that the supreme court relied upon to find there was no health and safety measure although just harlan disagreed. and giving the presumption he said the bake shop law should be
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upheld. it was holmes' position that was more radical than that. his position would not have even allowed proof to be introduced into the court. initially it was the harlan position that prevailed in the new deal, and it was not until a later case that the holmes dissent finally became the law when you were just not allowed to contest the rationale of the law on the restriction of liberty. >> we are getting ahead of ourselves. would you explain how joe lochner was able to get the supreme court to take the matter -- >> paul just reread his book, he knows the details better than i do. >> the details are spectacular. what happens is wiseman by the time, at the end of -- let me see what year it was. by the end of 1994 or so, he has a falling out with the bake shop. and normally i would -- when i
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would read these kinds of materials like the baker's journal, i would read clips, you know, like videotapes and things. this one they sent me was the baker's journal itself. this big old book that was falling apart in my hands, and inside the baker's journal i found an addendum to one month's editorial. and what it said was lochner had a falling out because he had been -- >> wiseman? >> i'm sorry. yes, wiseman. he had been skimming money. so he became a baker, he opened two bakeries and said he was studying law on the side. he became active in politics a little bit. republican politics and eventually in 1903, he is charged with practicing law without a license. and he admits it. he said he actually was not
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practicing. it he was just representing another attorney. so 1903, that is an important daylight, by the way. he pops up again in the lochner case, because he gets mackie, lochner's original attorney, he asks him to file appeal to the united states supreme court. the interesting thing is that mackie files a document titled, i wrote this down, he says an intention to appeal to the united states supreme court and filed $100 fee. the thing he didn't do is he did not file a motion for a writ of or. now for those of you who are not lawyers in the early 20th century, that was the way the file got to the supreme court. there was an order to send the file to the supreme court. so if that had been where we stood this case never would have happened. the case would have been deep in the basements of the new york court of appeals, just laying around with the $100 filing fee. wiseman took on another attorney.
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he was not a very famous attorney either. although he had argued the court before the supreme court. frank harvey fields saw the error, and he actually got justice peckham to degree to let the writ of error go through and get the case to the supreme court. well, when i was alerted to the fact that wiseman had been charged with practicing without a license i decided well, when did he get licensed? so i wrote to the civil court of appeals and the court charged with determining that and i asked for any names, spelling anything i could find. what i found was there was no henry wiseman ever licensed to practice law in new york. so essentially what happens, a, the case was very close to never getting to the court. and b, by the way, wiseman never called himself the attorney. he called himself of counsel. but he did get the right to argue at least part of the case before the supreme court. he did get the right to argue at least part before the supreme court. >> wiseman turns out to be one
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of the interesting characters in this entire story because he first starts out organizing the union and is responsible for passage of the law and then switches sides and helps get the case to supreme court defending lochner. so he is an interesting one to watch as we learn about this story. can you tell us a bit about the full report, makeup of the court? >> yes, the fuller court has the reputation of being a mixed court. there's justices put on there by teddy roosevelt and other presidents. and in fact, it had upheld economic regulations before the lchl och-- lochner case. and so it wasn't clear that it had a lock on the outcome. there are some historians who think that in fact justice peckham's opinion was originally drafted for the dissent and then the votes either were not drafted or changed.
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it actually in that sense -- the thing about dissenting opinions as opposed to majority opinions, they're very clear -- people have favorite dissenting opinions. majority opinions are written like by committee, and they're there to attract votes. if you have a dissenter like holmes, who would be called a great dissenter, one of the reasons i liked the lochner case so well, my favorite opinion in all of constitutional law, because it was written like a dissenting opinion with a very clear, singular argument. maybe because it was originally part of the dissent and got adjusted to be part of the 5-4 majority. >> how long had he been on the court and who was he appointed by? >> oh, god, he's been on the court since the 1980s. do you remember? >> but, it's like who can remember all these justice and where they came from?
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>> but he'd been on the court and he was a strong railroad attorney from chicago. and he had very strong pro-business -- >> and just want to add there's a lot of people to talk about the justices railroad attorneys. but in fact because the railroads were in charge of so much, you almost couldn't be a commercial lawyer without being a railroad attorney. >> was he famous among chief justices? >> i think not. i actually lived in that time period, so i think he's famous for me, but not everyone else. >> who were any of the other names of the justices serving the people? >> maybe i'm not the best person to ask, but david brewer, he say the nephew of stephen field and connected pretty strong ties. none of these people i think were particularly famous lawyers. >> lucas peckham went on with these ideas to be debated. can you tell us the other names of the justices serving the people that would distinguish
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themselves in court? >> the nephew of stephen field and connected pretty strong ties none of these people i think were particularly famous lawyers. it was day and white. none were particularly famous lawyers. >> lucas peckham went on with these ideas to be debated. can you tell us who he was the. >> he was a new yorker and been on the court for about ten years at this time. generally conservative views. he always voted -- primarily voted against any kind of labor regulation or restriction on business. interestingly enough the way i'm describing these people, it sounds like the lochners attorneys had a good case.
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i actually think they had a hard case going in. because most of the cases going in were state court opinions. there were only two court opinions coming in that were federal court opinions. the other was -- which up held another law. it was either an eight-hour day or a ten-hour day for public employees. public employees are part of the contract in a way. the government's part of the contract. so both of those cases were up held. so all of the cases that were in the supreme court at the time this case came up, upheld restrictions on our -- and it's somewhat of a myth even going
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forward from the lochner case that the supreme court struck down a lot of economic regulations. it struck down some but upheld far, far more than it struck down and i want to go to where we said at the beginning of the show because some of your viewers may not have and that the lochner court itself upheld to protect the public -- especially to protect the public but others as well including the bakers. just the one provision was struck down. >> we're going to learn more about the justice who wrote the majority opinion in our next piece of opinion, returning to the new york legislator. >> now, justice peckham who wrote the majority for the supreme court of united states decision in lochner's favor served on this court before this
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court heard the case. justice peckham was a judge of this court from 1887 to 1895. so when judge rufous peckham was on this court, he along with the others would have come out the door wearing the robe. and when he began he would have sat in that seat. that's the seat of the junior judge. and as he took on seniority and others came around, moved around. but never chief judge. he was a political advisor of president cleveland. and when there was a vacancy in the supreme court, cleveland felt his confidant would have been in this courtroom here. and we would have had a pretty good idea of how he would have voted. >> so that's a bit more about rufus peckham. did the new york bake shop act violate the liberty protected by the due process of the 14th
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amendment. that's obviously a big question. >> yes. >> so what kind of arguments? >> one thing to understand here is we have a very modern view of what rights are and how rights work, a post-new deal world view. so when the court talked about liberty of contract as being part of the liberty protected by due process clause, we have a tendency to think if you recognize a liberty of right of contract, that should trump all health and safety laws, all
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economic regulations. but that's not the way any constitutional rights, including freedom of speech was considered before the new deal. all laws had to be reasonable, which meant they had to be not irrational and arbitrary. and you could charge any law as irrational and arbitrary. so under the due process clause was this law irrational and arbitrary. irrational is when you pick a means and the means are not all that closely related to the end that you say is why you're doing it, we might have reason to doubt that's really why you're doing it. so if you say i want to go to the grocery store, my end is to go to the grocery store but you end up at the dry cleaners, maybe your end wasn't really to go to the grocery store. so if you pass a law of public health but you didn't go to public health, we suspect that's an irrational law. arbitrary law treats similar people differently. so you would regulate historians one way and law professors another way even though there's
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no way to distinguish the kind of job i do and the kind of work paul does. a law that treated us differently that way would be considered arbitrary. both of these ways are the ways that due process was handled. identifying a liberty of contract only meant that the law would have to be not irrational, not arbitrary in order to survive scrutiny. and that's what the court was deciding in this case. >> in our earlier cases, we learned the court was often hearing cases over multiple days and that arguments would go for a long time. what was the actual process of making an argument before the supreme court in 1905? had it standardized itself at that point? >> i don't think it was standardized. i also don't know that this case was as complicated as some of those other cases like the slaughterhouse case you covered like dredd scott. >> so thinking about the justice
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on the court is it fair to say none of these justice rose from the labor class -- so they all had a predisposition towards what i think is that question. >> i don't think any rose from poverty. holmes -- at least the ones that are famous that we know of. holmes was the son of an important doctor in boston and part of a boston elite sometimes called a boston brommans. if that explains his opinions which are sometimes hard to read because he writes more like a poet and a lawyer and more like a lawyer than someone who writes clearly. and harlen was the son of a slaveholder. he's a really, really interesting man because his opinions kind of swing one way or another. and people kind of have trouble
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getting a grip on john harlen. peckham as we've seen was the son of a judge. i'd like to make a comment about what randy said, though. he keeps saying these were all legitimate. well, that's part of the problem here. part of the problem was deciding what the power was merchandise liberty of contract was not founded in the constitution. it's an extra constitutional right. it's created by the courts. and it's not really created until after the slaughterhouse cases. although, you can make arguments that it's in the spirit of the constitution. it's not there. so what we end up with is kind of a triumverant of questions. one is does it violate due process, that's the due process clause of the 14th amendment. that's kind of the hook to the constitution.
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the other is what right violates the due process contract clause and is the contract clause. and as i said, not in the constitution and a relatively new development. and the third thing is the police power of the states, and what's the police power? and by saying it was a health law, that's not necessarily what everybody thought. people thought it extended to the general welfare. >> that's true. and the right to make a contract was the right passed by the congress that eventually passed the 14th amendment because they were concerned that the democrats had made such an issue of the civil rights act of 1866 that the minute they came back, they would repeal the act which they promised to do. and also the act had been vetoed under president johnson and there were some republicans who shared johnson's concern that maybe they didn't have the right to enforce contracts and so they passed the 14th amendment to
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make sure the rights that were mentioned in the civil rights act of 1866 would be protected by the courts. and one of those rights that was specifically mentioned and that was the right to make enforced contracts. it's not true that it made up the enforced contracts in 20th century. >> now, when we talk about henry wiseman, who you told us was not a lawyer, but he did get to argue the case before the court, here his book really very much enamerate of wiseman's quotes. this is henry wiseman making his case to the supreme court. and he compares the bakers to the american housewife. let's listen to what he said. then there is the american housewife. here's the real artist in biscuit, cake and bread. not to mention the american pie. the housewife cannot bound her hours of labor. she must toil on, sometimes far
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into the night. it seems never to have occurred these most important of all artists in this most indispensable of trades. appealing to motherhood and apple pie. >> he wasn't the first one. he was the strongest stay. but two of the judges of the u.s. court of appeals made that same comment. judge o'brien i think was the first. and what he said the good house wives would be surprised to learn that baking is an unhealthy business. he had a little bit of an image problem with respect to this case. and that was just what -- >> is that julius meyer? >> julius meyer. in fact, much of what people did was unhealthy, which is part of the unions were formed in the first place. why just single out the bakers and not all the others? that was considered to be
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arbitrary. the miners, the case that had already been upheld with respect to the minors had been -- when they were mining disasters in the united states on a pretty frequent basis. so they could say if you're down in a mine shaft for longer than a number certain of hours you present a safety risk to yourself and fellow minors. there was insubstantial evidence to show the same could be said of bakers as opposed to many, many other trades that were not being subjected to maximum hours law. so that would make the law arbitrary. the due process of law require that laws not be irrational and not be arbitrary. >> how long after the case was argued did it take for the court to return its opinion? >> oh, i have no idea how long. it didn't take as long as in those days as it takes now. there's no question about that. it was very quickly. >> and we talked earlier about
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how justice peckham originally started out as a dissent -- >> perhaps. it's speculated. >> it's in conference where the justices begin to argue their opinions. here's a little bit in this 5-4 decision on the lochner case that justice peckham wrote. there's no reasonable ground for interfering with the right of person or the right of free contract in determining the hours of labor in the occupation of a baker. there's no contention that bakers as a class do not have equal intention or capacity to man other trades and occupations or they're not able to assert their rights and care for themselves without the protecting arm of the state interfering with their independence of judgment and action. what's he appealing to there?
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>> he's appealing to the standard of arbitrariness. there's no particular reason to single out the bakers as opposed to other occupations he lists in his opinion. and that was the standard process of due process. once the due process is included in the 14th amendment and in the federal court applied to state laws as well. there is a reason to single out minors. >> here's a little bit about the dissent. he wrote a constitution is not intended to embody a particular economic reality. it is made for people of fundamentally different views. and the accident of our finding opinions natural or novel or even shocking not to conclude our judgment. what's he saying? >> he's actually attacking the
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whole notion of liberty of contract. he believes there's liberty of contract is not part of the constitution. that what in fact it is is a representation of laissez-faire economics. and what he believes is actually taking laissez-faire economic theory and applying it to constitutional law. >> which i think he's wrong about. it's taking the due process standard -- and i want to agree with paul what he said a minute ago. and that is there was at that point the nature of the police power, the scope of the police power was being contested. so this really what the debate ought to be about. in general you're free to enter into contract. we're all free to enter into contract as long as we're not harming another person. the question is what is the scope of the police power the
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state has to regulate us or prohibit us from doing certain things? that's really what the law was about. at that point, the court was saying that's as far as it goes. the other thing i want to say about justice holmes' statement here, later on he takes an entirely different approach. he says there is a free speech and ideas need to prevail. they need to survive in the marketplace. he says at least that's the theory of our constitution. so he was perfectly capable of finding theories in the constitution when he cared to. >> let's go next to roberta watching us in washington, d.c. hi, roberta. >> good evening, susan. the lochner case was argued over two days and decided less than two months later on april 17th. >> thank you. >> and i just have a few questions. it addresses the main point of liberty of contract. and that is the question of
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where did this come from? if you'll just bear with me a little bit. after the civil war and the passage of the 13th amendment slavery was out lawed, however of course many people in the south tried to keep de facto slavery intact. and of course many freed slaves were known as freed men, wanted their own land, that unfortunately wasn't happening as well. but what did happen was there was an agency called the freedmen's bureau. they went down to help the freed men make a living. they weren't able to get land, but what happened now is the the freed men were going to work on plantations all over again. and obviously the slaver owners preferred they do it for free. so what they came up with was this concept of have the slave owners sign a contract whereby they would guarantee the freed men wages.
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these contracts weren't exactly freeing in the sense that most of them were one-year contracts where the freed men could not leave the former plantation. lot of them had provisions if there was a bad crop that year, their wages would get docked, etseta raw. but at least there was something where they could say, hey, if i kick my end of the bargain, you owe me some money -- >> so our time is short. >> my question was how did the liberty contract was originally formulated as a shield to protect employees from employers taking advantage of them, how did that get flipped on its head to allowing employers to then use it as a sword against employees? because that's what basically happened in lochner. so that's my first question. >> i'm going to have to stop you there. thank you for your call.
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>> first of all, i would say there's two sides to a contract. i'm a contracts professor as well as a constitutional law professor. i want to mention he brings up a very important point. in the south there were all kinds of ways in which the southerners were trying to reimpose the subjugation of blacks. if somebody would sign a long-term contract they gave them a $15 fee to deposit in advance, and then they quit their job. they would actually accuse them of fraud and prosecute for crimes and put them in jail and submit them to hard labor. that law was also struck down by the lochner era court as a violation of 13th amendment. you know who descended in that
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case and would have upheld that law, justice holmes. he thought that law was perfectly constitutional. even throw the lochner era court thought it violated the 13th amendment. >> i have only about 15 minutes. let me ask you to compress 35 years of history, if you would. we said at the outset this initiated the lochner era. what does that refer to? what happened in the court during that time the. >> actually that term is a bit of a misnomer. it's not substantive to due process. the era involves a battle over the commerce clause and a battle over franklin delenore
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roosevelt -- actually randy might be better to tell you about that. >> i will have randy tell us about that, but let's listen to franklin roosevelt in 1937 complaining in a fireside chat. let's hear it now. >> because inhibition to the proper use has improperly set itself up as a third house of the congress, a super legislator, as one of the justices has called it, reading into the constitution the words and implications which are not there and which were never intended to be there. we have, therefore, reached the point as a nation where we must
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take action to save the constitution from the cost and the cost from itself. >> and what was that action? >> well, he tried to pack the court. he tried to pass a statute in which the number of justice would be increased, and he could appoint justices until they retired. democrats had huge majorities in both the house and the senate. and he could have gotten the constitution amendment to legitimate what it said. but he chose not to do that. he chose to do this instead. and there were leading democrat chairs of committees that were not friendly to this court packing scheme. and that's what he tried to do. >> a viewer earlier said the came to the end with a decision made in 1937. tell us what happened then. >> well, in west coast hotel v.
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parish, the supreme court said two things. one thing it said was the constitution speaks of liberty not liberty of contracts. so it rejects the whole notion of liberty of contract. the second thing it does is talk a little bit about the kinds of burdens on society. and it actually kind of hints at rejecting the whole notion of laissez-faire economics in the sense it says actually substandard wages actually turn out to be a subsidy on the people in favor of businesses. so it kind of turns the whole idea of lochner around. the one thing it doesn't do, though, and i'm sure randy is going to agree with this -- it gets rid of the notion of substantive due process. people don't talk about it in those terms anymore, but substantive due process in fact doesn't die. we still have a court that is -- >> actually, i think it's important to say that the term
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substantive due process was never used by the court during the so-called lochner era. it was simply a term made up by the critics to criticize what they were doing. so substantive due process was only embraced by the supreme court i think as late as the '60s and '70s. prior to that they never used the term. it was a criticism. i also want to agree with what paul said about the fact the so-called lochner era -- first of all, lochner didn't get any traction until teddy roosevelt ran for election. there were two oxys in front of the court at this time. one were due process clause and the other was power -- when we were arguing the affordable care act for two years, which i was involved with, people kept accusing us of favoring the lochner era or bringing back the
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lochner era, but we were not doing the due process case. so there was nothing whatsoever to do with the challenge of the affordable care act and that's a confusion that maybe this program can rectify in the future. >> it's a confusion and it's not a confusion because in both of those instances the court followed a pattern of restricting the ability of government to get involved in economic regulations. >> but the confusion is to label it lochner. that somehow lochner as a case had anything whatsoever to do with the commerce clause and the limits on federal power. >> and even recently as one of our viewers on twitter says chief justice roberts refers to the lochner case 16 times in his dissent on the same-sex marriage case. what is your view? let's listen to what the chief
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justice had to say about the same sex marriage decision and lochner. >> ultimately only one precedence supports the majority of the interpretation of the due process clause. lochner v. new york. in that case decided in 1905 the court struck down the state law setting maximum hours for bake air employees. the court did so based on its own particular view of liberty and it protects, quote, a general right of liberty to be free in own person. in the years after lochner the court struck down nearly 200 other similar laws that the court saw as a quote, interference with the rights of the individual. now the lochner era is now regarded as one of the most unprincipled eras in the court's history. the problemwise the prow wech is not because they were undesirable but it had no place in the constitution.
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>> i hope your viewers noticed that what chief justice roberts said sounds exactly the same as what franklin delano roosevelt said. many of them simply imported the roosevelt new deal jurisprudence and made that parts of their politics. so in fact it was the progressive restraint criticism of lochner that gets imported into the modern conservatism and it's the liberals on the court, the left on the court as early as the 1940s start abandoning all these calls for restraint. and they start assuming what they call an activist role. so we've done a flip here and now it's conservatives who are unreconstructed jurisprudence new deal.
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both left and right in this respect are all operating in a post-new deal mode. >> we have several major citations of the lochner case and in 1908, muller v. oregon, adkinsv. children's hospital of d.c. and griswold v. connecticut and roe v. wade and in 1992 in one of the planned parenthood cases and there were liberals citing the dissent and here's an example of the shifting politics. >> everything flipped as the court flipped. i actually think the liberals, being in favor of judicial activism -- which nixon ran on the idea that he was going to appoint judges that they're going to follow the constitution. it was the liberals that were the activists. i think that's the anomaly.
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by and large, conservatives have been the activists over time. i think your term was a post-new deal mentality. that's turned around a little bit. i think it is turning around a little bit so that you have the same time and you have chief justice roberts complaining about the liberals and justice ginsburg talking in the national federation of business about the conservative and elements of lochner, one talking about rober roberts and one is talking about the court injecting into the decision of economic policy and that would be ginsburg. that's where i think we're going now with this. >> let me take some calls. charles in springlake, new jersey, thanks for watching. you're on the air.
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>> y >> caller: yes. i don't have too much to add except uncle joe, that's what my father called him, my father's uncle, joe lochner and i don't know too much about the case itself but uncle joe, of course, ran that bakery and from what my father told me, used to employ a lot of the german immigrants. they would come over and have a place to work. >> so charles, and your family is joe lochner known for his place in history? >> oh, yes. two of my sisters are an attorney and my nephew is also an attorney and my niece is an attorney there in washington where you guys are and, yeah, we're all kind of like -- >> does the family say anything about the relationship of uncle joe with the employee that was trying to work more hours than he could under the statute?
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because we got some sense earlier that they were actually pretty close to each other and i think that there was some indication that this was a setup case to try to challenge the law. is there anything in your family history about that? >> caller: i don't know too much except that there was a sense that this was like -- almost like a clan. people would come to work and they would have a place to work. so there was, you know -- he fulfilled a need for people coming over from germany. >> thanks. i hope we told you more tonight about your relative, joe lochner, who is the person who gave his name to this case and brought it to the supreme court. let me take a call next from cloyd who is watching us from ft. campbell, kentucky. >> caller: hi there. can you hear me? >> sure can. >> caller: my question comes from a historical background. i have an education in history and i'm looking to go to law school next year.
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this is just fascinating to watch this. but it's the premise that the professor stated on the employers of the bakeries having a definite versus new york. i guess my concern is from an historical perspective how can you -- or should you be weary of saying just because there wouldn't any public record or anything you could find in your studies, analysis or research, no public record of them being involved. there wouldn't have been something behind the scenes, especially if it would benefit them to her or this other private small business. either in corruption or bribery at the legislative or judicial level? >> thank you. >> i think that's a good question. but i do have more than just not finding anything. two of the things i have is that
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the unions weren't powerful enough to get this passed so they weren't involved. the second thing is that, the bakeries were completely different, the powerful bakeries were the cracker industry bakeries. so they had no interest whatsoever in this particular bill. so, i think that's a good point of view but i still feel pretty strongly -- >> the union had no interest in the -- >> not the bakeries that were crack rin. >> but the bake shop union -- >> lochner didn't rep those people they represented only the bakery. >> but didn't the bakery union have -- >> absolutely they did but they didn't have any power. >> but it was a union initiative? >> yes, it was initiative. >> this will be the last call, ken from david city florida. hi ken. >> caller: thank you very much. there seems to be a mood -- and
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i originally was going to ask how did precede the accomplished of up ton claire jungle, i realized that was published a year later. many unions got their foot holes right at that time, i mean it was a very very important part of our history, just those few years and i wonder how much of this effected ports at the time? they must have been aware of all this. >> thank you. >> yeah they were. and back to a point i made before, unions were all white, there were some black unions, but they were small and all male. those progressives were very pro union. that also men that for de facto or maybe on purpose they also were for a white male. and to a disadvantage of blacks they were resentful of some
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powerful units that wouldn't let them in and had to make their own unions. keep in mind, we think of unions that were there and progressives light union. to answer your question, the court was aware of union trans tags which is why the court refer to motivates. unlike the rest of the bill, we might suspect other motivates are responsible for the the pass of it, like for example this was actually pro union according to management legislation and the court said the legislation is not suppose to put themselves on the side one way or the other, which is what paul was saying going on debating the scope of the police power. >> our guest says there's beginning to be a revisit of lochner especially among the yew m manitarians. >> so when you get to the lochner case, that case is in 1905, the majority rules 5-4
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that the right to make a contract is part of your due process. someone can't deprive you of determining how long your working hours are without due process. so president obama's a big opponent to this, but i'd ask him among the other things i'm asking him today to rethink the lochner case. the case in lochner is whether a majority rule, a state legislature could take away your due process. your due process to crack, can they take way your life and liberty without due process, the court rules no. i think it's a wonderful decision, it expands the 14th amendment and said to the people you have unenumerated rights. >> so gentlemen as we close, we were told the court ended the lochner era but you write in your book lochner is not dead. who should people know about
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lochner's importance today? >> i think the two of those show what the importance is. ran paul is talking about the idea of judicial activism, or it's roberts that's talking about the activism, and ran paul is talking about a certain view of liberty that i don't think everybody shares. this notion that you enter into a contract of completely free, at arm's length of the contract, by the way professor, don't hold in people's mind. >> and you get the last world. >> naturally i'm very symptom thesk to what senator reince said, in that speech he also says restoring the lost constitution, the presumption of liberty and the presumption is our liberty should be presumed to be valid and government should only restrict them if they have a good reason and if
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they do they outstanding to be able to present the good reasons in court. they were unable to do that according to five justices with respect to the maximum hour of law, that's what judging should require of legislations. >> that ends our prom on lochner v. new york. this is the four series of twelve. what we've done if you want to learn more about these cases, if you're learning like we are and your not a lawyer, we have a book available for you that we're selling at cost, it's written by tony month rals, twelve cases. if you go to our website you can fine out how to order it. you'll have people that will ship it out to you quickly as possible so you can follow along with the series. thank you to both gentlemen for joining us.
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>> announcer: landmark cases returns live in february on c-span. join us on the cases and justices and lawyers who were key to the supreme court review.
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>> announcer: american history t.v. is in prime time all week with our original series, landmark cases. tonight the supreme court decision that limited the president's power to cease private property. youngstown company versus soyier, it's the result of president truman taking over steel mils to revert a strike in the american war. american t.v. history prime time begins tonight at 8:00 p.m. eastern. >> announcer: the discussion on the supreme court case lochner verse new york, the court ruled against the state hours limiting a number of hours that people could work. the decision ushered in what's known as the lochner era in which the court struck down many states and federal positions on working conditions. this long hour discussion is hosted by the supreme court
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historical society. let me now mention how much we appreciate the fact that justice pryor has agreed to host this evening. we are sincerely grateful to you for that. brief comments about justice pryor can't begin to do justice to him so i'm going to have to be unjust in light of time constraints that i'm subject to. justice pryor has always been remarkably general with his time in supporting society projects. in less than two weeks on june 6th at our annual meeting he'll be delivering the society's 41st annual election. and of course he's doing these extra projects for society as a tremendously busy time for him and all of his colleagues on court. so justice pryor thank you so

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